Judgment:
T.S. Doabia, J.
1. Ramachandra Rao and Bhaskar Rao are real brothers. They owned agricultural land in this State in the district of Shivpuri. The then revenue authorities formed an opinion that the land owned by the appellants and located in survey numbers 248 to 252 is required to be dealt with under the Madhya Bharat Land Utilization Act, Sam-vat 2007 (Act No. 38 of 1950) (hereinafter referred to as the Utilization Act). Before noticing the various contentions which have been raised in this appeal, it would be apt to notice the scheme of the above Act.
2. Any land which was not being put under cultivation and which land was described as fallow land was to be used for the purposes of the Utilization Act. However, before doing this, the owner was required to be given a notice in terms of Section 3(4) of the Utilisation Act. If objections were not. filed, or these objections were found to be without merit, then further steps could be taken under Sub-section (5). The land could be given on patta to a person interested in putting the land under plough The period for which this land could be given was fixed at five years. This is apparent from Section 4(5) of the Utilization Act. There was statutory obligation cast on the lessee to restore the land. This statutory obligation can be spelled out from the reading of Section 4(9) of the aforementioned Act. Before further proceeding, it would be apt to notice the relevant statutory provisions, that is, Section 3(4), (5) and Section 4(5) and 4(9) of the Ultilization Act. These read as under:--
'3(4) A notice under Sub-section (1) shall be served in accordance with the procedure laid down in that behalf in the Code of Civil Procedure for the time being in force.
3(5) If the Malguzar, or the assignee of proprietary rights shown to the satisfaction of the Subba within 30 days from the date of the service of the notice that the land is not capable of being cultivated or that it is already being cultivated or has already been let out or allotted for cultivation, the Suba shall cancel the notice.'
'4(5) If neither the provisions of subsection (3) or (4) are complied with, nor the notice issued under Sub-section (1) is cancelled under Sub-section (2), the Tehsildar may, subject to rules made under this Act, sub-let the land for a period not exceeding five years.
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4(9) Notwithstanding anything contained in any enactment for the time being in force a sub-lessee, who does not hand over possession of the land sub-let to him under this section to the lessor or to the tenant who was in possession of the land before the sub-lease was affected or to his legal heir in case of his (lessor's or tenant's) death after the expiry of the period of such lease, shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of the United State of Gwalior. Indore and Malwa (Madhya Bharat) Land Revenue and Tenancy Ordinance, Samvat 2005.'
It be seen that the person who was put in possession under the provisions of Utilisation Act, was under statutory obligation to cultivate the land. If there was breach of any terms and conditions of the lease then the land could be resumed under Section 7 of the Utilization Act.
3. It is not in dispute that S. Nos. 248 to 252 were made subject-matter of utilization under the aforementioned Act. An order to this effect was passed on 5th of April, 1952. This land .came to be allotted to about 25 persons. One of the persons to whom the land was allotted was Bhagwandas. His name is not shown to the memorandum of parties, so far as this litigation is concerned. Document Ex. D/1 has been placed on the record. This is the order passed by the Board of Revenue. This is dated 3rd June, 1955. The fact that the land was put to use under the Utilization Act is apparent from this Ex. D/1. The further fact is that the present appellants challenged the allotment made in favour of Bhagwandas. This challenge was found to be futile up to the Commissioner's level. The matter was taken to the Board of Revenue. The Board of Revenue came to the conclusion that the order which was passed under Section 3(4) was an order which was passed without giving notice to Bhagwandas. It accordingly, concluded that the order passed by the Collector under the Utilisation Act taking over the agricultural land of Bhagwandas was null and void. The order passed by the Board of Revenue as indicated above is Ex. D/1. When this order was sought to be executed, an objection was taken by Bhagwandas. This objection was to the effect that as the Board of Revenue had not afforded any opportunity of hearing to him therefore order Ex. D/1 could not be executed. It was further pleaded by him that a matter of fact, he was not a party before the Board of Revenue. This aspect of the matter again found favour with the subordinate revenue hierarchy up to Commissioner's level. It was held that the order passed by the Board of Revenue Ex. D/1 cannot be executed against Bhagwandas. The matter was again taken before the Board of Revenue, The Board of Revenue came to the conclusion that the order Ex. D/1 could be executed. The copy of this order is Ex. D/3. This order is dated 15th of January, 1963. A review was preferred. This review came to be dismissed on 13th of March, 1964. The copy of this order has been placed on the record as Ex. D/2.
4. The above is the position vis-a-vis the proceedings taken under the Utilisation Act.
5. The other side of the story is that this Bhagwandas was held to be a defaulter. It was found that he had taken some takkavi loan and had not re-paid it to the Government. Non-payment of takkavi led to the auction of land. In this auction, one Girdharilal purchased the land which was given on lease of Bhagwan-Dass. This is evidenced By Ex. P/8. This is dated 27th of November, 1957. In the meantime, Ramcharrdra Rao and his brother Bhaskar Rao, present appellants were pursuing -their remedies to enforce the order passed by the Board of Revenue. This was by way of application is Ex. P/3. This is dated 29th of December, 1959.
6. The further fact is that Girdhari-Lal who was the auction purchaser further sold the land in favour of one Jotiprasad. This is evidenced by Ex. P/7. This happened on 4th of June, 1960. There was further sale in favour of Tarachand. This is evidenced by Ex. P/1. This is dated 24th of January 1963. Tarachand's legal heirs figure in this appeal as respondents. They are respondents 1 to 7.
7. The further fact which requires to be taken note of is that when the further execution of the order Ex. D/3, passed by the Board of Revenue was insisted upon, the plaintiffs filed the present suit. It was pleaded inter alia that the order passed by the Board of Revenue cannot be executed vis-a-vis the plaintiffs. According to the plaintiffs they were not aware of the proceedings which were taken before the Board of Revenue. It was further pleaded that the sale being by the Government, there could obviously be no manner of doubt with regard to the ownership of the land. As such, the plea which is available under Section 41 of the Transfer of Property Act, 1882 was sought to be taken impliedly. This is being so mentioned because there is no such plea taken in express terms.
8. The trial Court proceeded with the trial of the suit. During the first bout of litigation, the trial Court as well as the first appellate Court found no merit in the submissions made by the plaintiffs. The suit was dismissed. The matter came to this Court in second appeal No. 260/73. It was remanded to the appellate Court. The appellate Court has now came to the following conclusions :
(1) that Bhagwandas was not party before the Board of Revenue when original order Ex: D/1 was passed by the Board of revenue on 3-6-1955 and therefore, he would not be bound by the same:
(ii) the persons who have derived title from Bhagwandas would again be not bound by the same:
(iii) that the Board of Revenue had no jurisdiction to deal with the matter because a finality, would stand conferred to the order passed by the Commissioner. Reliance for this was placed on Section 8 of the Utilisation Act.
9. The learned counsel for the appellant has argued that as notice under Section 3(4) was not given and as such is the conclusion recorded by the Board of Revenue then this aspect of the matter should have been taken note of by the Appeal Court which had dealt with this matter of the which this appeal has arisen. It was also been argued that the land could not be sold by the Tahsildar because for recovery of takkavi Loan, the land which was merely a lease-hold property could not have been sold.
10. So far as the legal position is concerned, both sides are agreed that the land was given for the purposes contemplated by the Utilization Act referred to above. In this, a land owner was temporarily deprived of the possession of the land in his possession. This deprivation was because of this failure to cultivate the land and which act had rendered the land fallow. With a view to see that the land is put under plough, this specific statutory provision was brought on the statute book. The purpose is apparent from the Preamble, of the Act. The Act was enacted with a view to utilise uncultivated agricultural lands. The purpose was to increase the production of food grains. The land was to remain with the lessee for a period of five years and after the expiry of the period, he was to restore the land to the owner through the State. On his failure he was to acquire the status of a trespasser. Such a person was liable to eviction under Section 4(10) of the Act referred to above.
11. I am of the opinion that even if the contention of the plaintiffs that they had purchased the land in Government auction is accepted, even then they would not acquire any right better than the rights which came to be conferred on Bhagwandas. Bhagwandas was merely put into possession as a lessee for a period of five years. After this period of five years he was supposed to hand back the possession. When he failed to do so, he acquired the status of a trespasser and would be liable to eviction. So whatever rights came to be conferred on Bhagwandas would come to vest in the plaintiff/respondents. Faced with this situation, an argument has been raised that as there is no valid order passed by any competent authority against Bhagwandas or against the plaintiffs who had acquired rights through Bhagwandas, the plaintiffs cannot be dispossessed. It has also been argued that the Board of Revenue had no authority to pass any order under the aforementioned order.
12. It be seen that the question as to whether the Collector passed the initial order validly after issuing notice Section 3(4) of the Utilization Act, loses significance. This is because the period of lease was full five years. This period has come to an end. Even if order is found to not valid it is not possible to set the Clock back. The State was, therefore, under an obligation to pass an order in terms of Section 4(a)(9) of the aforementioned Utilization Act. Even if it be presumed that some takkavi loan was there which Bhagwandas had to pay, even then the plaintiffs would not acquire any status higher than that of Bhagwandas. On this reasoning, the argument raised by the present appellants that they were not given any notice and therefore, the original proceedings were bad need not be gone into. It is a mere acedemic issue. The material argument which requires to be taken note of is that the appellants had become entitled to restoration of the land after the period of five years. For the lapse of Bhagwandas, they have been deprived of the ownership of the land. This could not be done. As such, it would be apt to direct the State of Madhya Pradesh who figures as respondent No. 2 in this appeal, to take notice of the provisions contained in Section 4(a)(9) and also Sections 7, 8 and 9 of the aforementioned Act. The State would either compensate the appellants by giving alternate land or would initiate proceedings against the plaintiffs and see to it that the appellants are restored back the land to which they become entitled to after the period of five years that is the statutory period fixed for creating of lease. The equity of the matter, however demands that the State of Madhya Pradesh should give alternate land to the appellants the plaintiff/respondents should not be disturbed. They would however be well within their rights to contend that they are bona fide purchasers. As and when any proceedings is taken by the revenue officers, the plaintiffs/ respondent would be at liberty to establish this aspect of the matter also. The concerned Collector, i.e. Collector of Shivpuri, take notice of the observations made in this judgment. He would initiate proceedings within a period of one month under Section 4(a)(9) of the Utilization Act. The period to one month would begain from the date the copy of this order is made available to the Collector, Shivpuri. The Registry of this Bench would also send the Copy of this judgment to the Collector Shivpuri. He would complete the proceedings thereafter within a further period of six months. The judgment and decree passed by the Court below would stand varied accordingly.